United States Court of Appeals
For the First Circuit
No. 06-1976
JOHNNY FRITS MEWENGKANG,
Petitioner,
v.
ALBERTO R. GONZÁLES,
Attorney General of the United States,
Respondent.
ON PETITION FOR REVIEW OF AN ORDER OF
THE BOARD OF IMMIGRATION APPEALS
Before
Torruella, Circuit Judge,
Tashima,* Senior Circuit Judge,
and Lipez, Circuit Judge.
Wei Jia, on brief for petitioner.
Sophia A. Kapsaskis, Special Assistant U.S. Attorney, and
Michael J. Sullivan, United States Attorney, on brief for
respondent.
May 25, 2007
*
Of the Ninth Circuit, sitting by designation.
TORRUELLA, Circuit Judge. In this petition for review,
Johnny Frits Mewengkang contests the decision of the Board of
Immigration Appeals ("BIA") denying his request for withholding of
removal. After careful consideration, we deny the petition for
review and affirm the decision of the BIA.
I. Background
Mewengkang is an Indonesian national. He entered the
United States on a B1/B2 visa on June 24, 1996, but remained in the
United States past the time permitted by his visa. In May 2002,
Mewengkang filed an application for asylum. On March 11, 2003,
Mewengkang was served with a Notice to Appear, charging him with
removability. Mewengkang conceded that he was removable, but
petitioned for withholding of removal on the ground that he would
be subject to persecution on account of his religion if he was
returned to Indonesia. Mewengkang presented his claim before an
immigration judge ("IJ").
The gist of Mewengkang's claim is that he is a Christian,
and that upon return to Indonesia, he would be subject to
persecution by members of the predominant religion there, which is
Islam. Mewengkang claims that his cousin was killed because he had
organized a Christian proselytizing trip to a majority-Muslim area.
Furthermore, Mewengkang claims that his general contracting
business suffered because of his refusal to join a Muslim builders'
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union known as the ISNI, and that he was violently harassed after
he complained about its interference in the contracting process.
The IJ rendered a decision on the day of the hearing,
finding that Mewengkang was not credible because (1) he initially
listed one child on his asylum application when in fact he had two;
(2) there were discrepancies in Mewengkang's account of the violent
incident with the ISNI; (3) Mewengkang testified that he had not
applied for asylum until 2002 because he was unfamiliar with the
process despite familiarity with other immigration procedures; and
(4) there was a discrepancy in Mewengkang's testimony about his
employment in the United States. Furthermore, the IJ found that
even if Mewengkang's account of past persecution was credible, it
was unlikely that he would be persecuted if he returned to
Indonesia, and that Mewengkang's real motivation was economic
gain.1
Mewengkang appealed to the BIA, which affirmed by per
curiam order, stating that the inconsistencies identified by the IJ
provided a reasonable basis for rejecting Mewengkang's testimony.
The BIA order further held that Mewengkang had not established a
clear probability that he would be persecuted upon his return to
1
The IJ also noted that Mewengkang's asylum application was time-
barred under 8 U.S.C. § 1158(a)(2)(B), which provides that asylum
applications must be filed within one year of the alien's arrival
in the United States.
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Indonesia. Therefore, the BIA ordered Mewengkang removed, but
granted him sixty days to depart voluntarily.
II. Discussion
A. Standard of Review
The attorney general may not remove an alien whose life
or freedom would be threatened on account of race, religion,
nationality, membership in a particular social group, or political
opinion. 8 U.S.C. § 1231(b)(3)(A). The alien bears the burden of
proving that it is more likely than not that he will be persecuted.
Sharari v. Gonzáles, 407 F.3d 467, 474 (1st Cir. 2005).
Where the BIA has adopted the IJ's credibility
determination, as here, we review the determination of the IJ.
Chen v. Gonzáles, 418 F.3d 110, 113-14 (1st Cir. 2005). The BIA
has previously stated that an alien may be found incredible based
on discrepancies in testimony where "(1) the discrepancies and
omissions described by the Immigration Judge are actually present;
(2) these discrepancies and omissions provide specific and cogent
reasons to conclude that the respondent provided incredible
testimony; and (3) the respondent has not provided a convincing
explanation for the discrepancies and omissions." Matter of A-S-,
21 I. & N. Dec. 1106, 1109 (BIA 1998); see also Hoxha v. Gonzáles,
446 F.3d 210, 216-17 (1st Cir. 2006) (applying test from Matter of
A-S-). However, "an adverse credibility determination cannot rest
on trivia but must be based on discrepancies that 'involved the
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heart of the asylum claim.'" Bojorques-Villanueva v. INS, 194 F.3d
14, 16 (1st Cir. 1999) (citation omitted).
We then review an IJ's overall findings of fact to see if
they are supported by "substantial evidence." Sharari, 407 F.3d at
473. "We afford de novo review to the BIA's legal conclusions, but
cede some deference to its interpretations of the [Immigration and
Nationality Act]." Da Silva v. Ashcroft, 394 F.3d 1, 5 (1st Cir.
2005).
B. Was the IJ's credibility determination supported by
substantial evidence?
The IJ based his adverse credibility determination on
four discrepancies in Mewengkang's testimony. First, Mewengkang
stated on his asylum application that he only had one child, but
later testified that he had two. Mewengkang's explanation for the
discrepancy was that his immigration consultant, "Mr. Poppy," told
him that he did not have to list married children. Mewengkang
could not produce Mr. Poppy to testify. The IJ stated in his
opinion that he did not find this explanation convincing given the
possibility of an alternative explanation, namely, that the child
not listed on the asylum application had applied and been rejected
for a visa to visit the United States, and that Mewengkang thought
that listing the child would hurt his chances to obtain withholding
of removal. Because Mewengkang provides no evidence that would
support his explanation for the discrepancy in testimony and
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because we find the IJ's alternative explanation convincing, we do
not disturb the IJ's conclusion.
In addition, Mewengkang stated on his asylum application
that he had not been employed in the United States prior to 1997.
However, Mewengkang testified before the IJ that he had been
employed in a retirement home in 1996. Mewengkang provided no
explanation for this discrepancy at the hearing, and does not
attempt to do so now. Accordingly, we do not disturb the IJ's
determination that Mewengkang had not been forthcoming on his
asylum application.
Although it is unclear whether these two discrepancies go
to the heart of Mewengkang's asylum claim, the IJ did not rely on
them alone. The IJ identified two other discrepancies, one that
directly bears on the events giving rise to Mewengkang's asylum
claim, and one relating to Mewengkang's asylum application. First,
Mewengkang stated in his asylum application that when he confronted
the ISNI, "the outcome was worst. My complaint make the [ISNI]
group become violent. They attacked me and broke my right hand."
However, when testifying before the IJ, Mewengkang explained that
in fact he had lost his temper and began fighting with an ISNI
member, and that his hand was lacerated, not broken. Mewengkang
explains this discrepancy by stating that his immigration
consultant's language skills were poor, and that the confusion
resulted from a mistranslation. Again, Mewengkang did not offer
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evidence that his statements had been mistranslated. Furthermore,
we agree with the IJ that the fact that Mewengkang's asylum
application made no mention of Mewengkang's role in inciting the
altercation with the ISNI seems calculated to mislead rather than
the product of an innocent mistranslation. Thus, we do not disturb
the IJ's finding that Mewengkang's explanation for the discrepancy
was not convincing.2
In addition, Mewengkang testified that he did not apply
for asylum immediately upon his arrival to the United States
because he was not aware that such a claim could be made.
Mewengkang testified that he first became aware that he could make
an asylum claim in 2000. However, although Mewengkang testified
that he was ignorant of the asylum procedures, he also testified
that he was aware of other and availed himself of other immigration
procedures, such as the visa lottery. Moreover, although
Mewengkang claims to have learned about asylum in 2000, he did not
2
The IJ also noted that Mewengkang had stated in his asylum
application that he had made a complaint to the Indonesian
government regarding discrimination, but that this was misleading
because it referred not to discrimination by the ISNI, but to
something having to do with an agricultural business he owned at
one point. Mewengkang explains that the statements were not
inconsistent, and that he made two separate complaints of
discrimination. It is not clear whether this confusion resulted
from an effort by Mewengkang to mislead the IJ or from the IJ's
misunderstanding of Mewengkang's admittedly confusing allegations,
but in either case, it is clear that the IJ listed this discrepancy
as only one example of Mewengkang's lack of candor. Thus, this
argument does not alter our conclusion that the IJ's credibility
determination was supported by substantial evidence.
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file his asylum application until two years later, in 2002.
Mewengkang explained that this delay was caused by his immigration
consultant, but offered no further details. We agree with the IJ
that Mewengkang's explanation for these discrepancies was
unconvincing, especially in light of his age and apparent
sophistication. Mewengkang can point to no evidence that would
support his explanation for the discrepancy, and as such, we do not
disturb the IJ's conclusion.
These discrepancies in Mewengkang's testimony, including
those regarding the events giving rise to his claim for withholding
and regarding his application for asylum and withholding provide
substantial evidence to support the IJ's credibility determination.
As such, we conclude that the IJ did not err in determining that
Mewengkang was not credible.
C. Did the IJ err in determining that Mewengkang was not entitled
to withholding of removal?
Mewengkang is entitled to withholding of removal only if
he can show that it is more likely than not that he will be
persecuted on account of race, religion, nationality, membership in
a particular social group, or political opinion. Sharari, 407 F.3d
at 474. The IJ determined that Mewengkang's testimony that he
would be persecuted was not credible, and that his desire to remain
in the United States was motivated by economic concerns.
Mewengkang suggests that even if the IJ determined that his
allegations of past persecution were not credible, he might still
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be entitled to withholding of removal if he can show a likelihood
of future persecution. See 8 C.F.R. 208.16(b)(2) ("An applicant
who has not suffered past persecution may demonstrate that his or
her life or freedom would be threatened in the future in a country
if he or she can establish that it is more likely than not that he
or she would be persecuted on account of race, religion,
nationality, membership in a particular social group, or political
opinion upon removal to that country."). Although Mewengkang is
correct in this assertion, he ultimately fails to point to any
evidence in the record that suggests that he would be persecuted on
account of his religion if he were returned to Indonesia; an
unsupported statement alone will not support Mewengkang's burden in
light of the IJ's adverse credibility finding. In the absence of
such evidence, we conclude that the IJ did not err in denying
Mewengkang's claim for withholding of removal.
III. Conclusion
For the reasons stated above, we deny the petition for
review and affirm the decision of the BIA.
Affirmed.
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